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June 7, 2010

"[M]ost law reviews are simply a waste of trees"

The title of this post (which is cross-posted at LSI) comes from the last phrase of this amusing and effective commentary by Professor Gerald Uelmen in the June 2010 issue of the California Lawyer.  (Hat tip: C&C.) The piece is titled "The Wit, Wisdom, and Worthlessness of Law Reviews," and here are a few snippets:

During California's legal "golden era" of the Gibson and Traynor Courts in the 1950s and '60s, law reviews were cited with increasing frequency. In a classic study of the authorities cited in California Supreme Court opinions, Stanford law professor John H. Merryman counted 164 law review citations in the court's 1970 opinions, a "sharp increase" over previous years (Merryman, "Toward a Theory of Citations," 50 S. CAL. L. REV. 381 (1977)).

I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six.  This despite — or perhaps because of — the fact that law reviews have tripled in number since the 1970s.  The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley's alone publishes 14, while Stanford and UC Hastings each publish 9.  Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes.  But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.

As Adam Liptak of the New York Times observed a few years ago, "Articles in law reviews have certainly become more obscure in recent decades.  Many law professors seem to think they are under no obligation to say anything useful or to say anything well.  They take pride in the theoretical and in working in disciplines other than their own.  They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them."...

Of course, there are still a few law professors who would rather publish for practicing lawyers and judges than just for other professors. But given the way the academic game is played these days, they do so at their peril — particularly if they are seeking tenure. Still, law reviews are in no danger of disappearing anytime soon.  After all, big law firms and elitist judges continue to demand "law review experience" as a prerequisite for hiring.  The publication of student notes also provides a vehicle to enhance badly needed writing skills for barely literate law students.  But in terms of contributing to the profession, most law reviews are simply a waste of trees.

To put a little sentencing spin on this effective attack on modern law reviews, I wonder how many of the "20 ABA-accredited law schools in California [that] now publish a total of 82 law reviews" have produced articles discussing the dysfunctionality of California's state sentencing system or the profound legal issues that surround its long-lasting prison over-crowding problems.  I know of a few strong "local" pieces on California's three strikes law and other local topics, but not as many as are justified or needed for the legislators, courts and practitioners struggling daily with these issues.

As readers of this blog know, there are an array of interesting and important (and theoretically sophisticated and challenging) issues surrounding California's sentencing law and policy that merit extended and repeated coverage in law reviews.  And I am proud to note that one of the law reviews that I edit, the Federal Sentencing Reporter, has this new issue on "California's Corrections Crisis."  I am thus glad that Professor Uelmen says only that "most" not "all" law reviews are a waste of trees.  (And, of course, no trees were killed or even hurt in the production of this blog post.)

June 7, 2010 at 09:12 AM | Permalink

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Comments

Doug,

Professor Uelmen has it right. That is why blogs like yours are critically important to those of us who happily continue to do legal plumbing instead of the high art typically practiced in the legal academy.

Keep up the good work. Take care.

Richard Kopf
US District Judge

Posted by: Richard Kopf | Jun 7, 2010 11:55:32 AM

The real benefit of the article is that it makes the professor thoroughly review a subject, including recent appellate decisions. That process keeps the professor up to date for the benefit of the students, and it enlarges the content of the teaching. Practitioners discover some solution to a real world problem, it spreads within weeks. It does not even require publication.

That being said, the idea of student editors comes from the exploitive laziness and fondness for alcohol of one Harvard Dean. It is completely inappropriate and exploitive. The bright student should be writing an article, and not footnote checking on many articles submitted with incomprehensible subject matters. The student hardly knows more law than a civilian. To have a student judge the merit of some arcane, advanced legal theory in an article is wrong. At least, the student, as layperson, could insist on Plain English to be able to understand the article better. Clarity would be helpful. That does not happen.

Some things the lawyer review does well: 1) submission to multiple journals at the same time; 2) open publication on the web, in contrast to subscriptions to technical journals that may cost libraries a couple $thousands each. They could allow comments after each other, to enhance the credibility and utility of the articles, or have a pro-con discussion of the conclusions by uninvolved experts in the field.

Posted by: Supremacy Claus | Jun 8, 2010 2:40:42 AM

Thanks for the post, very interesting - I am a student looking to go into law, and I was researching law reviews. I don't especially like them, so I'm glad someone else with some authority feels the same way.

Posted by: Benjamin Blakeman | Jul 29, 2010 3:26:37 PM

I am a defense attorney who thinks that law reviews are fluff. We need to remove some of that from the system.

Posted by: Darrell Smith | Aug 2, 2010 5:30:40 PM

I like the theme of this website. Did you originally design it or did you get a theme from somewhere. The Red is an exciting color and I like the simple layout.

Posted by: Tax Crisis Institute | Aug 12, 2010 7:02:13 PM

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